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Corporate News *  Missing seized records must be considered while testing ITC claim; duplicate GST demands ordered corrected: Delhi High Court. *  GST appeal can’t be rejected without addressing taxpayer’s grounds: Allahabad High Court. *  Surplus IGST credit can offset CGST, SGST shortfall: GSTAT. *  GST refund can’t be denied when cancelled airfares are returned with tax: GSTAT. *  3 Hearing notices issued within 2 minutes: Gujarat High Court flags portal flaw, seeks report. *  GSTR-9, GSTR-9C filing for FY 2025-26 enabled; pending GSTR-1 and GSTR-3B must be filed first. *  Dupattas are exempt fabrics, can’t be taxed as fibres at 4%: Madras High Court. *  Full transitional credit allowed on capital goods received after GST rollout: GSTAT denies Rs. 6.99 lakh export duty credit. *  GST return mismatch alone can’t justify fraud proceedings: GSTAT orders fresh adjudication under section 73. *  Supplier found non-existent later can’t alone justify input tax credit denial: GSTAT. *  GST interest stops once tax reaches government account, can’t run until return filing: GSTAT. *  Cancelled flat booking- GST refund can’t be denied without excluding COVID period from limitation: GSTAT. *  India notifies rules of origin for India–New Zealand FTA. *  Incomplete E-bike kits classifiable as complete vehicles, but not eligible for CKD duty concession: CESTAT. *  Same GST rate on main input and output can’t by itself bar inverted duty refund: GSTAT. *  Unjust enrichment doesn’t apply to customs refunds from assessments finalised before July 13, 2006: Gujarat High Court. *  CENVAT credit can’t be denied solely because plant And machinery are embedded in earth: Karnataka High Court. *  DFIA exports ineligible for RoDTEP benefits; customs directs repayment with applicable interest. *  Second E-Way bill alone doesn’t prove another supply: GSTAT. *  Bail denied in Rs. 1.19 crore fake GST refund case over risk of accused absconding again: Punjab and Haryana High Court. *  GST registration can be restored after revocation deadline if outstanding dues are paid: Gauhati High Court. *  Multiple GST proceedings over same suppliers: Calcutta High Court directs dept. to share findings for adjudication. *  E-Governance portal services not OIDAR, fixed deposit interest not taxable: CESTAT. *  Rs. 500 Stamp duty required on authority letters for CAs, CMA and GST practitioners in Pune GST division.  *  Rs. 1.10 crore GST refund must be paid in cash after business closure: Allahabad High Court. *  Godown rent attracts 18% GST even when used exclusively for exempt agricultural warehousing: AAR. *  GST portal launches "Multi-State Registration" facility: one master TRN for registration applications across multiple States/UTs. *  RoDTEP scheme extended till 31st December, 2026.  *  Mere disagreement with order can’t override Rs. 20 lakh appeal limit: GSTAT. *  Customs interest can’t be backdated before confiscation liability is determined; nearly 8 year period excluded: Delhi High Court.
Subject News *  GST summons: anticipatory bail maintainable without arrest order, but relief denied in evasion case: Allahabad High Court. *  GST Appeal can’t be decided without hearing taxpayer’s objections to fresh evidence: Allahabad High Court. *  GST ITC can’t be reversed merely because supplier grants discount without reducing tax liability: GSTAT. *  Mere quoting of GST provision is not a valid charge: GSTAT quashes ITC denial. *  Personal hearing mandatory before adverse GST order, even without taxpayer’s request: Rajasthan High Court. *  Parallel bail pleas without full disclosure amount to abuse of process Rs. 43.08 crore GST case sent for fresh hearing: Supreme Court. *  GST refund based on unchallenged advance ruling can’t be recovered using later circular: GSTAT. *  Payment of GST alone doesn’t end interest and penalty liability when tax and interest remain unpaid beyond 30 days of notice: GSTAT. *  GST demand over builders’ 80% procurement rule requires reasoned adjudication: GSTAT. *  Eligible ITC doesn’t automatically entitle taxpayers to compensation cess refund on domestic sales: GSTAT. *  GST confiscation order passed before reply deadline invalid: GSTAT. *  GST interest can’t be retained after tax refund on delayed export receipts: Punjab & Haryana High Court. *  GST appeal can’t be dismissed over pre-deposit shortfall without opportunity To respond: Bombay High Court. *  DGGI SCN can’t be challenged before reply and adjudication:Chhattisgarh High Court. *  GST input tax credit can’t be denied solely due to supplier’s retrospective registration cancellation: GSTAT. *  GST notice must explain fraud allegations; merely repeating section 74 Is not enough:  Himachal Pradesh High Court. *  Audit detection alone can’t justify GST fraud penalty; specific suppression must be proved: GSTAT. *  GST order uploaded only under ‘Additional Notices’ tab without separate intimation set aside: Calcutta High Court. *  Service Tax appeal can’t be rejected for missing pre-deposit proof when payment is already recorded: CESTAT. *  SGST dept. can’t hear appeal against CGST order: Calcutta High Court. *  Mere dispatch of tax order can’t prove service or make appeal time-barred: CESTAT. *  Dealer incentives can’t be taxed merely on ledger entries: CESTAT. *  DGFT orders quashed for failure to supply DRI letter relied upon in SCN: Bombay High Court. *  GST penalty u/s 122(1A) can’t apply to Pre-2021 transactions; unregistered beneficiaries also covered: Delhi High Court. *  Expired E-way bill caused by wrong PIN code can’t justify GST penalty without intent to evade tax: GSTAT. *  Used railway rails can’t be taxed as track material without proof they are fit for reuse: CESTAT. *  Earlier DGGI notice doesn’t bar separate GST demand on different issue: Delhi High Court. *  ITC dispute involves no question of law: GSTAT directs appeal to Vice-President. *  Earlier DGGI notice doesn’t bar separate GST demand On different issue: Delhi High Court. *  No E-way bill required for interstate goods movement in november 2017: GSTAT quashes detention and penalty.  

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GST UPDATE ON WHETHER BEST JUDGMENT ASSESSMENT CAN BE MADE FOR DEFAULT IN FILING GSTR-3B? 155/2020-21

GST UPDATE ON WHETHER BEST JUDGMENT ASSESSMENT CAN BE MADE FOR DEFAULT IN FILING GSTR-3B? 155/2020-21
The concept of best judgment assessment is new to indirect taxation and appears to have been borrowed from direct taxes. Section 62(1) of the CGST Act, 2017 provides that where a registered person fails to furnish return under section 39 or section 45 even after service of a notice under section 46, the proper officer may proceed to assess the tax liability of the said person to the best of his judgment taking into account all the relevant material which is available. Recently, an interesting decision was passed by the Appellate authority in the case of M/s OMSAI PROFESSIONAL DETECTIVE & SECURITY SERVICES (P.) LTD. [2020 (121) TAXMANN.COM 192 (AA-GST-AP)] wherein it was held that best judgment assessment cannot be done in respect of non-filers of GSTR-3B. The reasoning adopted and the implications of this decision are the subject matter of consideration of the present update.
                            
The appellant has been filing GSTR-1 returns by declaring outward taxable supplies under GST but have not filed GSTR-3B returns and has not paid the applicable taxes on its outward supplies as declared in the returns in GSTR-1. The assessing authority issued notices to the appellant for filing GSTR-3B but the appellant failed to file the same. Consequently, the assessing authority passed best judgment orders under section 62 of CGST Act, 2017 by enhancing the value of supplies declared in GSTR-1 by 50%. The appellant submitted that the reason for not filing GSTR-3B was the cash crunch faced by them. It was also submitted by the appellant that the conditions for invocation of provisions of section 62(1) were not satisfied as one of the conditions is the failure to furnish returns under section 39 of the CGST Act, 2017. It was submitted that as per section 39, returns specified are GSTR-1, GSTR-2 and GSTR-3 and GSTR-3B is not a return prescribed under section 39. Reliance was also placed on the decision rendered by Hon’ble Gujarat High Court in the case of M/S AAP & CO., CHARTERED ACCOUNTANTS VERSUS UNION OF INDIA [2019-TIOL-1422-HC-AHM-GST] wherein it was held that GSTR-3B is not a return under section 39.
 
The appellate authority held that enhancing the value by 50% on ad-hoc basis reflects the arbitrariness of the assessing authority in passing best judgment assessment. The appellate authority placed reliance on various decisions of Income Tax/Sales Tax wherein it was held that best judgment assessment is not a wild assessment. Best judgment order must be founded upon some rational basis, relevant material and logic and should not be based on presumptions and guess work. Any best judgment assessment must be supplemented by reason, because reason is the heart beat of any conclusion and fetches clarity in conclusion of any order, as such, without the reason best judgment orders becomes lifeless and amounts to denial of fundamental justice. The Hon’ble High Court also conceded that the GSTR-3B cannot be considered as a return under section 39 of CGST Act, 2017 by placing reliance on the decision rendered by Hon’ble Gujarat High Court in the case of M/S AAP & CO., CHARTERED ACCOUNTANTS VERSUS UNION OF INDIA [2019-TIOL-1422-HC-AHM-GST] . Therefore, the appeal was allowed by setting aside the best judgment order.
 
 It is pertinent to mention here that although the government has amended Rule 61(5) with retrospective effect by way of insertion of Proviso clearly stating that where return in Form GSTR-3B is required to be furnished by a person, then such person shall not be required to furnish return in Form GSTR-3 vide Notification No. 49/2019-CT dated 09.10.2019 nullifying the effect of decision rendered by Hon’ble Gujarat High Court and this fact was discussed also. However, still the Hon’ble High Court granted relief to the assessee by declaring the best judgment assessment to be arbitrary. This decision is of immense importance to the assessees for restricting invocation of best judgment assessment for non-filing of GSTR-3B return. 

This is solely for educational purpose. 
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